EU Data Privacy Official Slams Copyright Talks

As international negotiations toward a major cross-border trade agreement to curb intellectual property crimes continue behind closed doors, a top European privacy official today blasted the secrecy of the talks, sounding an alarm about Internet monitoring provisions that could press ISPs to filter traffic on their networks for pirated content.

The warning from European Data Protection Supervisor Peter Hustinx comes as nations negotiating the Anti-Counterfeiting Trade Agreement (ACTA) recently concluded the seventh round of talks at a meeting in Guadalajara, Mexico.

While the negotiations are secret, and anyone who is given access to ACTA documents is bound to silence by a non-disclosure agreement, leaked materials have been trickling out onto the Internet, including some that outline provisions calling for heightened monitoring by ISPs to crack down on subscribers suspected of illegally downloading or sharing copyrighted content.

"Whereas intellectual property is important to society and must be protected, it should not be placed above individuals' fundamental rights to privacy and data protection," Hustinx said today in a statement. "A right balance between protection of intellectual property rights and the right to privacy and data protection should be ensured. It is also particularly crucial that data protection requirements are taken into account from the very beginning of the negotiations so as not later on having to find alternative privacy compliant solutions."

Hustinx expressed frustration that his office was not consulted by the European Commission negotiating delegation, and warned against establishing controversial graduated response or "three strikes" rules, which would press ISPs to terminate the service of suspected infringers after repeated violations and entail a close monitoring of the traffic on their networks.

But one of the latest leaks, which surfaced on a Google Groups site, if legitimate, outlines draft language of the Internet portion of ACTA, including a provision that would shield ISPs from civil liability if they implemented policies to deter copyright infringement on their networks.

"An example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers," the document said.

Critics of the ACTA process, both in the U.S. and abroad, have expressed concerns that the agreement could reshape the legal frameworks of the participating countries concerning intellectual property in an effort backed by lobbying interests representing industries seeking rigid copyright protections. In the United States, ACTA would take effect as an executive agreement, meaning that it could be implemented without congressional approval. Several lawmakers have objected to the secrecy of the negotiations.

The parties negotiating ACTA are aware of the concerns about the closed-door talks, and have begun to explore mechanisms to improve the transparency of the process, according to a leaked summary of the Guadalajara meeting. The summary of the transparency discussion described an agreement among the participants "to add a rebuttal of the main unjustified rumors circulating about ACTA (control of laptops, iPods at the border; compulsory 'three-strike rule' for Internet infringers, etc.). However, there is no agreement yet on the release of negotiating texts."

That language suggests that the negotiating parties are attuned to the heated controversy that follows any effort to cast ISPs as copyright cops, though it doesn't necessarily refute the leaked document that surfaced on the Google Groups page. That document only suggested a graduated response policy as a way for network providers to protect themselves from civil liability, saying nothing about a compulsory monitoring program.

The next session of ACTA negotiations is scheduled to convene in New Zealand from April 12 to 16, with another meeting scheduled for Geneva around mid-year. The groups negotiating the agreement hope to draft the final version before the end of the year.

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